Commonwealth v. Washington

Justice SAYLOR,

concurring.

I join the majority opinion, subject to the following thoughts.

First, I respectfully disagree with the majority’s decision to dismiss completely the possibility of per se prejudice resulting from the alleged deleterious relationship between trial counsel and Appellant. See Majority Opinion, Op. at 545. The majority acknowledges that Appellant’s claim amounts to the averment of “a total disintegration of the function of trial counsel.” Id. Since I am unable to discern a relevant distinction between such a state of affairs and the actual or constructive denial of counsel that serves as one threshold for presumed prejudice under United States Supreme Court precedent, see, e.g., Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984), I believe that the decision as to whether or not prejudice should be presumed should proceed from the fact finding on remand.

Second, while I support the majority’s decision to remand, it seems to me that there are potential disadvantages and inefficiencies in deferring a determination con*547cerning whether Appellant’s other claims warrant a hearing and fact finding by the PCRA court and/or leaving it to the discretion of the PCRA court which additional claims will be developed. See Majority Opinion, op. at 546, n. 8. For example, I believe that Appellant’s evidentiary presentation concerning prejudice associated with the antipathy claim will likely overlap substantially with the development of Appellant’s claim that trial counsel failed to adequately investigate and present a case for mitigation in the penalty phase.1 Moreover, although there appears to me to be a widening divergence in the opinions concerning whether and under what circumstances a capital, post-conviction petitioner is entitled to a hearing on such claims, my position in these cases remains that a hearing is implicated where a petitioner’s evidentiary proffer, if believed, would undermine confidence in the verdict. This position is grounded in cases such as Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999), and Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717 (2000), which, although they are clearly being undercut in terms of their direction in requiring credibility determinations by post-conviction courts, have not yet been expressly overruled by the Court.2

As another example, Appellant also presents a fairly potent claim that trial counsel blundered through the penalty-phase closing argumentation, inter alia, admonishing the jurors that their verdict was of no import since another sentence of death already had been imposed upon Appellant relative to another killing, and essentially goading them in the direction of returning a second death sentence. This noted aspect of the claim is supported by the following passage from the transcript, reflecting counsel’s initial statement to the jury in the closing argument;

[THE COURT]: If you’re ready to proceed you may.
[COUNSEL]: lam.
He’s going to die. He’s going to die because he already has the death sentence. Do you want to give him another death sentence? Go ahead. It won’t matter.

N.T., December 6, 1994, at 50. Without entertaining evidence on this claim, the PCRA court found it “obvious that this was a trial strategy designed to effectuate the defendant’s interest.” PCRA Court Opinion, op. at 540.

While I readily agree with the PCRA court that it is apparent that counsel’s remarks were grounded in some strategy, the constitutional test is one of reasonableness. See Commonwealth v. Pierce, 515 Pa. 158, 158, 527 A.2d 973, 975 (1987). Thus, the court was bound to assess whether remarks by capital defense counsel that expressly diminish the sentencing jurors’ sense of responsibility connected with their decision whether or not to return a sentence of death could be justified as a reasonable strategy designed to effectuate the client’s interests. See id. The *548PCRA court, however, made no such determination.

For my part, I have great difficulty in apprehending how a reviewing court could find that a defense strategy which expressly removes responsibility from jurors via the indication that their verdict “won’t matter,” and suggests a nonchalant attitude on the part of the defense with the indication “go ahead,” could in any sense or circumstance be deemed a reasonable one. See generally Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) (holding that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere on it”).3

Based on the above, and left to my own devices, I would explicitly widen the remand mandate to encompass, at least, a requirement of a hearing regarding the above-noted claims independent of the antipathy aspect.

. In its opinion, the PCRA court mistakenly indicated that it had afforded an evidentiary hearing on the mitigation-related claim generally, See PCRA Court Opinion, op. at 539, an assertion which is contradicted by the record. See N.T., October 1, 2000, at 2-5; N.T., October 10, 2001, at 3-5, 86-87. As the majority notes, the hearing was closely confined to one aspect of that claim, namely, the allegation of deficient stewardship connected with the failure to procure Appellant’s juvenile record. See id.

. It seems also worth noting that, as one central justification for its recent revamping of the scheme for review of claims of ineffective assistance of counsel, the Court stressed the importance of the development of such claims on an evidentiary record. See Commonwealth v. Grant, 572 Pa. 48, 65-68, 813 A.2d 726, 737-38 (2002).

. The PCRA court also indicated that, since the admission into evidence of the fact of the prior death sentence by the Commonwealth was proper, Appellant could not establish the prejudice necessary to prevail on this claim. See PCRA Court Opinion, op. at 540. The district attorney, however, had introduced the fact of the other sentence onto the record for an appropriate purpose and in its appropriate context, i.e., to establish a statutory aggravating circumstance. See 42 Pa.C.S. § 971 l(d)(10). The prosecutor was in no way permitted to do, and did not do, what trial counsel succeeded in doing, which was to tell the jurors that the prior sentence rendered their own verdict superfluous.